Date of Filing : 23.12.2011
Date of Order : 03.04.2012
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR
Dated 3rd APRIL 2012
PRESENT
Sri. H.V. RAMACHANDRA RAO, B.Sc., BL, ……. PRESIDENT
Sri. T.NAGARAJA, B.Sc., LLB. …….. MEMBER
Smt. K.G.SHANTALA, B.A., LLB. …….. MEMBER
CC No. 232/2011
Smt. B.M. Manjula,
W/o. Narayanaswamy.C.M.
R/at No. 259, Near Airtel Tower,
2nd Main Road, Gandhinagar,
Kolar Town.
(By Sri. L. Nagaraja, Adv.) ……. Complainant
V/s.
1. The Medical Superintendent,
R.L. Jalappa Hospital & Research Centre,
Tamaka, Kolar.
2. Dr. Sandhya,
Resident in Radiology,
R.L. Jalappa Hospital & Research Centre,
Kolar.
(By Sri. K.V. Shankarappa, Adv.) …… Opposite Parties
ORDER
By Sri. H.V. RAMACHANDRA RAO, PRESIDENT
The brief antecedents that lead to the filing of the Complainant made u/s. 12 of the C.P. Act seeking direction to the OP to pay to the Complainant Rs.5,00,000/- are necessary:
On 14.11.2011 the Complainant took her son N. Ganesh aged about 11 years to OP1 with a complaint of severe stomach pain. Doctors conducted Lab Tests, Sinology Scan and as per the Sinology Scan OP2 came to the conclusion that there is no significant abnormality. She gave medicine for pain. Few days later, Ganesh complained similar stomach pain and accordingly he was taken to Dhanvanthri Polyclinic, Kolar, wherein THE Doctor prescribed some medicines and directed the Complainant to take scan once again in other Hospital for Radiology test, abdominal & pelvis ultrasound report. Accordingly, she took her son to Ganesh Health Care where Radiologist after pelvis scan found “Recurrent Appendicitis with reactionary Lymphadenopathy”. On 29.11.2011, Complainant was admitted to Srinivasa Nursing Home where the Doctors diagnosed as Appendicitis of 3.5” and operation was done. OP2 is also responsible for this. She spent Rs.50,000/- towards treatment. Hence this Complaint.
2. In brief version of the Ops are:-
The Complainant has come to the Hospital in July 2011 itself for head ache. She has brought her son for abdominal pain. After the test, she did not turn-up to the Hospital. There was neither wrong diagnosis nor anything. What happened subsequently is not known to these Ops. All the allegations to the contrary are denied.
3. To substantiate their respective cases, parties have filed their respective affidavits. OP has filed written arguments. Arguments were heard.
4. The points that arise for our consideration are:
(A) Whether there is negligence and deficiency in service?
(B) What Order ?
5. Our findings are:
(A) Negative
(B) As per detailed order for the following reasons
REASONS
6. This is the case of medical negligence and deficiency in service by the Hospital. Before looking to the facts it is better to consider the law on the point. In a case between MARTIN F.D’SOUZA v/s MOHD. ISHFAQ reported in I (2009) CPJ 32 (SC), the Apex Court at Para-41 has ruled thus:-
“ A Medical practitioner is not liable to held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. For instance, he would be liable if he leaves a surgical gauze inside the patient after an operation vide Achutrao Haribhau Khodwa & Others v. State of Maharashtra & Others, AIR 1996 SC 2377, or operates on the wrong part of the body, and he would be also criminally liable if he operates on someone for removing an organ for illegitimate trade”.
At Para 44, it has ruled thus:-
“The standard of care has to be judged in the ligh of knowledge available at the time of the incident and not at the date of the trial. Also where the charge of negligence is of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time.
At Para 47, it has ruled thus:-
“Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightaway liable for medical negligence by applying the doctrine of resipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patent since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse”.
That is so say that a medical practitioner is not liable to be held negligent simply because thing went wrong from mischance or misadventure or through an error in judgment in choosing one reasonable course of treatment in preference to another course. He will be liable only where his conduct fell below the standards of a reasonably competent practitioner in his field. The standard of care has to be judged in the light of knowledge available at the time of the incident and not at the time of trial. Accordingly because a patient has not favourably responded to a treatment given by the Doctor, the Doctor cannot be held to be liable. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient.
7. Further in the same judgment at Para-52 it has been ruled thus:-
“The professional is one who professes to have some special skill. A professional impliedly assures the person dealing with him (i) that he has the skill which he professes to possess, (ii) that skill shall be exercised with reasonable care and caution.”
At Para-73 it has been ruled thus:-
“From the aforementioned principles and decisions relating to medical negligence, with which we agree, it is evident that doctors and nursing homes/hospitals need not be unduly worried about the performance of their functions. The law is a watch-dog, and not a blood-hound, and as long as doctors do their duty with reasonable care they will not be held liable even if their treatment was unsuccessful”.
At Para-76 it has been ruled thus:-
“The basic principle relating to the law of medical negligence is the Bolam rule which has been quoted above. The test in fixing negligence is the standard of the ordinary skilled doctor exercising and professing to have that special skill, but a doctor need not possess the highest expert skill. Considering the facts of the case we cannot hold that the appellant was guilty of medical negligence”.
At Para-93 it has ruled thus:-
“It is evident from the fact that the respondent was already seriously ill before he met the appellant. There is nothing to show from the evidence that the appellant was in any way negligent, rather it appears that the appellant did his best to give good treatment to the respondent to save his life but the respondent himself did not cooperate.
That means the law is a watch dog and not a blood-hound, and as long as doctors do their duty with reasonable care they will not be held liable even if their treatment was unsuccessful one. In testing or fixing negligence the Doctor need not possess the highest expert skill only if he is a normal Doctor and his conduct is normal, he is not liable. If the patient was already seriously ill before he met the Doctor in question and there is nothing to show in the evidence that the Doctor has not done his best treatment then the Doctor or the Hospital cannot be held liable.
8. Further in the same judgment, the Apex Court at Para-112 has ruled thus:-
“The Commission should have realized that different doctors have different approaches, for instance, some have more radical while some have more conservative approaches. All doctors cannot be fitted into a strait jacketed formula, and cannot be penalized for departing from that formula.
At Para-115 it has ruled thus:-
“Hence, Courts/Consumer For a should keep the above factors in mind when deciding cases related to medical negligence, and not take a view which would be in fact a disservice to the public. The decision of this court in Indian Medical Association v. V.P. Shantha (supra) should not be understood to mean that doctors should be harassed merely because their treatment was unsuccessful or caused some mishap which was not necessarily due to negligence. In fact in the aforesaid decision it has been observed (vide para 22)
“In the matter of professional liability professions differ from other occupations for the reason that professions operate in spheres where success cannot be achieved in every case and very often success or failure depends upon factors beyond the professional man’s control.
That means to say different doctors will have different approaches, Some Doctors approaches in a different way some are more radical while the others are conservative Doctors cannot be fitted into a strait jacketed formula, and cannot be penalized. The law could not mean to harass the Doctors merely because of the treatment is unsuccessful. One in the matter of professionalism, professional will differ from the other professional. An expert opinion should always be there in these types of matters.
9. Further we may look to law regarding the negligence.
(a) Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. [See law of Torts, Ratanial & Dhirajlal Twenty-fourth Edition 2002, at PP 441-442.]
(b) Negligence means “either subjectively a careless state of mind, or objectively careless conduct. It is not an absolute term but is a relative one; is rather a comparative term. In determining whether negligence exist in a particular case, all the attending and surrounding facts and circumstances have to be taken into account” [See Municiapl Corpm. Of Greater Bombay v. Laxman Iyer, VI (2003) SLT 706=III (2003) ACC 551(SC)=(2003) 8 SCC 731, Para6; Adavanced Law Lexicon, P.Ramanatha Aiyar, 3rd ed. 2005, p.3161]
(c) Negligence is strictly nonfeasance and not malfeasance. It is the omission to do what the law requires, or the failure to do anything in a manner prescribed by law. It is the act which can be treated as negligence without any proof as to the surrounding circumstances, because it is in violation of statute or ordinance or is contrary to the dictates of ordinary prudence.
(d) In Bolam V.Friern Hospital Management Committee, (1957), 2 All ER 118, the law was stated thus:-
“Where you get a situation which involves the use of some special skill or competence, then the test……is the standard of ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art…
[A doctor] is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a skilled in that particular art…..putting it the other way round, a [doctor] is not negligent, it he [has acted] in accordance with such a practice, merely because with such a practice, merely because there is a body of opinion which [takes] a contrary view”
(e) It has been laid down that an ordinary skilled professional standard of care for determining the liability of medical professional should be followed:-
[See Maynard v.West Midland Regional Health, Authority, (1985) 1 All ER 635 (HL)].
(f) Recently Martin F.D. Souza v. Mohd.Ishfaq, 157 (2009) DLT 391 (SC)=II (2009) SLT20=I (2009) CPJ 32(SC)=(2009) 3SCC1, this Court laid down the precautions which doctos / hospitals, etc., should have taken, in the following terms:
(a) Current practices, infrastructure, paramedical and other staff, hygiene and sterility should be observed strictly..
(b) No prescription should ordinarily be given without actual examination. The tendency to give prescription over the telephone, except in an acute emergency, should be avoided.
(c) A doctor should not merely go by the version of the patient regarding his symptoms, but should also make his own analysis including tests and investigations where necessary,
(d) A doctor should not make experiment unless necessary and even then he should ordinarily get a written consent from the patient.
(e) An expert should be consulted in case of any doubt…”
(g) We may refer to Bolitho v. City and Hackney health Authority, (1997) 4 All ER 771 (HL), where the court got away from yet another aspect of Balam case. It was observed:
“The court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant’s treatment or diagnosis accorded with sould medical practice. The use of these adjectives – responsible, reasonable and respectable – all show that the Court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. In particular in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable and respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the mater”
(h) In this regard it would be imperative to notice the views rendered in Jacob Mathew v. State of Punjab, 122 (2005) DLT 83 (SC)=III (2005) CCR 9 (SC)=VI (2005) SLT 1=III (2005) CPJ 9 (SC)=2005 6 SCC 1, where the court came to the conclusions:
(i) Mere diviation from normal professional practice is not necessarily evidence of negligence.
(ii) Mere accident is not evidence of negligence,
(iii) An error of judgment on the part of a professional is not negligence per se.
(iv) Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per so by applying the doctrine of res ipsa loquitur.
10. Further, in a case between KUSUM SHARMA & ORS. V. BATRA HOSPITAL & MED. RESEARCH CENTRE & ORS in Civil Appeal No.1385/2001 dated 10/02/2010, the Apex Court has ruled thus:-
I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and 50 not the negligence merely based upon an error of judgment.
III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judge in the light of the particular circumstances of each case is what the law requires.
IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
VIII. It would not be conductive to the efficiency of the medical profession if no Doctor could 52 administer medicine without a halter round his neck.
IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
X. The medical practitioner at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
XI. The medical professionals are entitled to get protection so long as they perform the duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the 53 patients have to be paramount for the medical professionals.
These principles have to be considered in this case.
11. The other decisions citied i..e, (2003) CPJ 311, IV (2003) CPJ 299, II (2005) CPJ 414, III (2005) CPJ 369, III (2005) PCJ 375. have been considered and there is no dispute about the preposition of law stated therein. However, these principles and these decisions are not applicable to the facts and circumstances of this case.
12. Further let us look to the other fundamental of the law. In AIR 1929 Lahore 868(2) it has been held thus:-
“It is for the plaintiff to prove his own case. He can succeed only on the strength of his own title and not merely by picking holes in the defence and showing that it was a week one”.
That means it is for the complainant to prove his own case. He can succeed only on the strength of his own title and not merely by picking holes in the defence and showing that it was a weak one.
13. Further in AIR 1971 Madras 422, it has been ruled thus:-
“A Plaintiff coming to the court with specific grounds cannot failing to prove it try to rely on the facts alleged by the defendant”
That means the party who has come to the court has proved his case by his evidence and he cannot merely by picking holes in the Opposite Party’s case and say that his case is proved.
14. Further in AIR 1971 SC 1865, it has been ruled thus:-
“Mere marking of a document as an expert does not dispense with either the proof or deemed proved.
15. In AIR 1975 Madras 257, it has ruled thus:-
“ The consent given by a party for marking a document does not dispense with either the proof of the contents of the document or the truth or otherwise of the contents.
That means mere producing the documents or exhibiting, it will not mean it is proved or contents are true.
16. Further in AIR 1976 Goa 49 it has been ruled thus:-
“specific plea taken in the written statement, not met by counter plea or evidence by plaintiff, held that defendant should succeed in his plea”.
That is to say if the Opposite Party has taken certain plea in his version if it is not made by counter evidence by the complainant, then on the strength of the plea of the Opposite Party his case is proved and the complainant’s case is to be rejected.
17. This is also the law laid-down in a cases between INS.MALHOTRA V.DR.AKRIPLANI II 2009 CPJ (18) (SC), NIJAM INSTITUTE OF MEDICAL SCIENCES V. PRASANTH S.DHANANKA reported in II (2009) CPJ 61 (SC), AJAY KUMAR V. DR.DEVENDRA NATH reported in II (2004) CPJ 482, DR.(SMT)KUMUD GARG V.RAJA BHATIA, reported in I 2004 CPJ 369, AMAR SINGH V.FRANCES NEWTON HOSPITAL, reported in I (2008) CPJ8, ASHOK KUMAR V. DR.SURESH SHARMA, reported in I(2001) 478, DR.AKHIL KUMAR JAIN V.LALLAN PRASAD, reported in II (2004) CPJ 504, DR.HARKANWALJIT SINGH SAINI V.GURBAX SINGH and another reported in I (2003) CPJ 153, DR.KAMTA PRASAD SINGH V.NAGINA PRASAD, reported in III (2000) CPJ 28, LAXMAN V. TRIMBAK (SHELAT J.) reported AIR 1969 SC 128, INDERJEET SINGH V. DR.JAGEEP SINGH, reported in III (2004) CPJ 20, INDIAN MEDICAL ASSOCIATION V. V.P. SHANTHA & ORS., reported in III (1995) CPJ 1, JAI PRAKASH SAINI V. DIRECTOR, R.G.C.I. & R.C. REPORTED IN I (2003) CPJ 305, KANHAIYA KUMAR SINGH V.PARK MEDICARE AND RESEARCH CENTRE, reported in III (1999) CPJ 9, MAM CHAND V.DR.G.S.MANGAT OF MANGAT HOSPITAL, reported in I (2004) CPJ 79, between MARBLE CITY HOSPITAL & RESEARCH CENTRE V. V.R.SONI, reported in II (2004) CPJ 102, NIRMALENDU PAUL V.DR.P.K.BAKSHI, reported in III (2000) CPJ 79, between N.S.SAJITA V. NEW RUBY HOSPITAL, reported in II (2000) CPJ 345, between DR.P.K.PANDEY V.SURAJ NURSING HOME, reported in II (1999) 65, between RAJINDER SINGH V.BATRA HOSPITAL AND MEDICAL REEARCH CENTRE, reported in III (2000) CPJ 558, between SARDOOL SINGH v.MUNILAL CHOPRA & ANO., reported in I (1999) CPJ 64, between SMT.SAVITRI SINGH V. DR.RANBIR PD.SINGH, reported in I (2004) CPJ 25, between SMT.VIRLESH DIXIT V.DR.R.R.SINGHAL, reported in I (2004) CPJ 123, between SURINDER KUMAR (BADDI) & ORS. V.DR.SANTOSH MENON & ORS , reported in III (2000) CPJ 517, between VAQAR MOHAMMAD KHAN V.DR.S.K.TANDON, reported in II (2002) CPJ 169.
18. In the case between Smt. Vimlesh Dixit V Dr.R.K.Singhal, I (2004) CPJ 123 (Uttaranchal), it has been ruled thus:-
“Every operation is not a case of negligence. Failure of operation is also not a case of negligence. Side effects are also possible. Happening of side effects is also not negligence. The term “negligence” is defined to mean absence of lack and care, which a reasonable man should have taken in the circumstances of the case. Not even a single word has been told in the complaint, nor in the grounds of appeal about what care was desired from the doctor in which he failed. It is not said anywhere that what negligence was done during the course of operation. Nerves may be cut down at the time of operation and mere cutting of nerve does not amount to negligence. It is not said that it has been deliberately done. To the contrary it is also not said that the nerves were cut in the operation and it was not cut t the time of accident. No expert evidence whatsoever has been produced. Only the report of the Chief Medical Officer of Haridwar has been produced wherein it has been said that the patient is a case of post Havmatic Wrist Drop. It is not said that it is due to any operation or the negligence of the doctor. The mere allegation will not make out a case of negligence, unless it is proved by reliable evidence and is supported by expert evidence. It is true that operation has been done. It is further true that the complainant has met heavy expenses but unless the negligence of the doctor is proved she is not entitled to any compensation.
19. What is the standard of case? In the case between Dr.Kamata Prasad V.Nagina Prasad, III (2000) CPJ 283 (WB), it has been ruled thus:-
It is now a settled principle of law that a medical practitioner will bring to his task a reasonable degree of skill and knowledge and must exercise reasonable degree of care. Neither the very highest nor the very low degree of care and competence judged in the light of circumstances in each case is what the law requires. Judged from this yardstick, post-perative infection or shortening of the leg was not due to any negligence or deficiency in service on the part of the opposite party appellant. Deficiency in service thus cannot be fastened on the opposite party.
20. BURDEN OF PROOF: In the case between Ajay Kumar V.Dr.Devendra Nath, II (2004) CPJ 482:-
The Apex Court and the National commission have held in several cases including Dr.Laxman Balkrishna Joshi Vs. Dr.Triambak Bapu Godbole, AIR 1969 SC 128: (1986) 1 SCR 206, and in the leading case of Indian medical Association V. V.P. Santha, 1996 (1) CCJ 1 (SC) : III (1995) CPJ (1995) 6 SCC 651 : 1995 (3) CPR 412, it has been held that a doctor is not guilty of negligence since he acted in accordance with the practice accepted as proper by a reasonable body of medical man skilled in that field. To make allegation against a doctor is easy but it is difficult to prove it. His case is on different footing with the negligence act of a taxi driver. Therefore, the evidence to prove negligence of a doctor must be of a high degree and must be an expert evidence which leads to the conclusion that it was the fault on the part of the doctor which he committed negligently which caused adverse to the patient.
The above literature will regard to lariago clearly mentioned that the side effect of this medicine if taken for longer duration can be on eye sight but this is not a fact in this case besides there is no expert evidence on record to show that use of this medicine caused damage to his eye sight. Even for argument sake if it accepted that this medicine has caused damage to his eye sight in that case also if the respondent-doctor who is qualified one has advised to use this medicine after examining the patient and found the patient suffering from malaria in that case also the doctor-respondent cannot be held guilty of negligence or deficient in his service. However, as stated above in this case the medicine has been used by the patient in low doses for a very few days and there is no expert evidence to show that the use of medicine has affected his eyesight. Therefore, the complainant-appellant has failed to prove that respondent was negligent and deficient in his duty as a doctor.
21. PROOF AS TO MEDICAL NEGLIGENCE:- In the case between Dr.Akhil Kumar Jain V.Lallan Pradad, II (2004) CPJ 504.
It has been held in different judgments by the National Commission and by the Hon’ble Supreme Court that a charge of professional negligence against the doctor stood on a different footing to a charge of negligence against the driver of a motor car. The burden of proof is correspondingly greater on the person who alleges negligence against a doctor. The complainant-respondent has miserably failed to adduce expert evidence in support of his the best skill in the worldly things some time went wrong in medical treatment or surgery operation. A doctor was not to be admitted fact that complainant’s eye sight was not restored after the operation conducted by the appellant but on this ground alone a doctor was not to be held negligent because even after adopting all precautions and care the result of the operation may not be satisfactory because it depends on various other factors. The contention of the appellant that patient was suffering from diabetes and blood pressure and in many such cases the eye sight is not restored after the operation howsoever carefully it is done. In the instant case there is nothing on record to show that something went wrong due to an act of the appellant-doctor. There is no evidence to come to the conclusion that the appellant fell below the standard of a reasonably competent practitioner in their field, so much so that their conduct might be deserving of censure. The appellant cannot be liable for negligence because someone else of better skill or knowledge would have prescribed a different method of operation in different way. The evidence has come that appellant has performed the operation and acted in accordance with the practice regularly accepted and adopted by him in this hospital and several patients are regularly treated for their eye problems. The Hon’ble Supreme Court in the case of Dr.Laxman Balkrishna V.Dr.Triambak, AIR 1969 Supreme Court page 128, has held the above view and his view has been further confirmed in the case of Indian Medical Association V.Santhana. The Apex Court and the National Commission has held that skill of medical practitioner differs from doctor to doctor and it is an incumbent upon the complainant to prove that O.P. appellant was negligent in the line of treatment which resulted into the loss eye sight of the complainant. A judge can find a doctor guilty only when it is proved that he has fallen short of standard of reasonable medical care. The fact and circumstances of the case before us, show that appellant has attended the patient with due care, skill and diligence and if the patient’s eye did not work satisfactorily, on this account alone it would be difficult to hold the doctor to be guilty of negligence and deficient in his duty. It is settled law that it is for the complainant to prove the negligence or deficiency in service by adducing expert evidence or opinion and this fact is to be proved beyond all reasonable doubts. Mere allegation of negligence will be of no help to the complainant.
22. In case between Amar Singh V.Frances Newton Hospital & Anr., I (2001) CPJ 8, it has been ruled thus:-
“All medical negligence cases concern various questions of fact, when we say burden of proving negligence lies on the complainant, it means he has the task of convincing the court that his version of the facts is the correct one”.
“No expert opinion has been produced by the complainant to contradict the report of the Board of Doctors. All medical negligence cases concern various questions of fact, when we say burden of proving negligence lies on the complainant, it means he has the task of convincing the court that his version of the facts is the correct one.
23. Ashok Kumar V.Dr.Suresh Sharma, I (2001) CPJ 478, it has been ruled thus:-
Admittedly no expert has been produced by the complainant to prove negligence of the opposite party. After removal of the plaster, it was discovered that lower portion of patella had not united with the rest of the patella. Plaster was changed twice on 18/11/1996 and on 18/12/1996 and the complainant had approached the opposite party for follow up action on 02.03.1997 and 05.12.1997 respectively. The complainant was still to undergo further treatment by the opposite party by way of removal of wire and removal of lower fragment of patella in case it continued to cause pain and problem to the complainant, even after removal of the wire. He stopped getting further treatment from the opposite party after removal of the wire, as advised.
Thus, it cannot be said with exactitude that treatment of the complainant by the opposite party was against the norms prescribed under the medical jurisprudence or that the opposite party in any way was negligent or deficient in performance of his duties.
24. In the case between Chand V.Dr.GS Mangat of Mangat Hospital, I (2004) CPJ 79 (NC), it has been ruled thus:-
“Allegation of medical negligence is a serious issue and it is for the person who sets up the case to prove negligence based on material on record or by way of evidence” (At Para 6).
Complaint of medical negligence dismissed as applicant failed to establish and prove any instance of medical negligence.
25. In the case between Dr. (Smt. Kumud Garg V.Raja Bhatia, I (2004) CPJ 369, it has been held thus:-
“Merely because the operation did not succeed, the doctor cannot be said to be negligent (At para 13)
Appeal of the doctor allowed
26. IN the case between Vimlesh Dixit V.Dr.R.K.Singhal, I (2004) CPJ 123 (Uttaranchal)
The mere allegation will not make out a case of negligence, unless it is proved by reliable evidence and is supported by export evidence (At Para 9)
27. In the case between Harkanwaljit Singh Saini V.Gurbax Singh & anr, I (2003) CPJ 153 9NC)
“The commission cannot constitute itself into an expert body and contradict the statement of the doctor unless there is something contrary on the record by way of expert opinion or there is any medical treatise on which reliance could be based” (At Para 6)
Revision Petition of the doctor allowed.
28. In the case between Na Sahota V. New Ruby Hospital & Ors, II (2000) CPJ 345, it has been held thus;
“The burden of proving the negligence act or wrong diagnosis was on the complainant” (At para 7) Appeal dismissed as no expert evidence was produced.
29. NEED FOR EXPERT EVIDENCE IN MEDICAL NEGLIGENCE CASES. In the case between Dr.Harkanwaljit Singh Saini V.Gurbax Singh & another, I (2003) CPJ 153 (NC), it has been held thus:-
The commission cannot constitute itself into an expert body and contradict the statement of the doctor unless there is something contrary on the record by way of expert opinion or there is any medical treatise on which reliance could be based. In the present case Dr.Saini said that the X-ray report indicated a small opacity that such like opaque shadow become visible for many other causes than the calculus. It could not be assumed that still stone existed on the right kidney which had not been operated upon by Dr.Saini.
In the circumstances, we do not think that any case of negligence has been made out by the complainant. This petition is, therefore, allowed.
30. EXPERT EVIDENCE TO INDICATE NEGLIGENCE ON THE PART OF DOCTOR. In the case between Sardool Singh V.Muni Lal Chopra & Anoother, I (1999) CPJ 64 (Punjab), it has been held thus:-
The present is not a case of apparent negligence on the part of the surgeon in conducting the operation. As to whether the plate used was inferior quality, the complainant was required to lead expert evidence on that, without any test, it could not be held that such a plate was of inferior quality. The other type of medical negligence cases are those where expert opinion is require to be produces to prove it. In the present case, the complainant has not produced any expert witnesses to prove that there was any fault in the performance of the operations. Fixation of the bones by using plates in one of the recognized modes of treatment in the case of aforesaid method, though subsequently plate has adopted the negligence cannot be attributed to the doctor. This is not a case complication arose. Breaking of the plate after about six months of doctor in performing the operation. The District Forum rightly held that the complainant had failed to prove his case.
31. In the case between dr.Manjit Singh Sandhu V.Uday Kant Thakur & Others, III ( 2002) CPJ 242, it has been held thus:-
There is nothing on the record to suggest that there has been any negligence and or deficiency in service on the part of the appellant except the oral submission of the Respondent/complainant. In such cases before coming to a positive finding, there must be an expert evidence on record as has been held both by the National Commission as well as the Apex Court.
32. In the case between Jai Prakash Saini V.Director, Rajiv Gandhi Cancer Institute and Research Centre and Ors, I (2003) CPJ 305 (Delhi), it has been held thus:-
In order to decide whether negligence is established in any particular case, the alleged act or omission or course of conduct, complained of, must be judged not by ideal standards nor in the abstract but against the background of the circumstances in which the treatment in question was given and the true test for establishing negligence on the part of a doctor is as to whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of it acting with reasonable care. Merely because a medical procedure fails, it cannot be stated that the medical practitioner is guilty of negligence unless it is proved that the medical practitioner is guilty of negligence unless it is proved that the medical practitioner did not act with sufficient care and skill and the burden of proving the same rests upon the person who asserts it. The duty of a medical practitioner arises from the fact that he does something to a human being which is likely to cause physical damages unless it is not done with proper care and skill. There is no question of warranty, undertaking or perfection of a skill. The standard of care and skill to satisfy the duty in tort is that of the ordinary competent medical practitioner exercising the ordinary degree of professional skill. As per the (sic.) charged with negligence can clear himself if he shows that he acted in accordance with the general and approved practice. It is not required in discharge of his duty of care that he should use the highest degree of skill, since they may never be acquired. Even deviation from normal professional practice is not necessarily in all cases evidence of negligence. As per settled law, the onus to prove that there was negligence / deficiency in service on the part of the opposite parties, while diagnosing and treating the complainant, lay heavily on the complainant. The complainant in the given facts has failed to discharge the onus which was on him. Moreover, in the case of medical negligence, again as per settled law as already discussed only a fair and reasonable standard of care and competence is expected from a medical practitioner while treating his patient. A doctor while treating his patient is not to be held “As per the settled law, the onus to prove that there was negligence / deficiency in service on the part of the opposite parties, while diagnosing and treating the complainant, lay heavily on the complainant. Complainant in the given facts has failed to discharge the onus which was on him. AT Para30.
Complaint dismissed as complainant failed to discharge the onus to prove negligence or deficiency in service.
33. In the case between Marble City Hospital & Research Centre and Ors. V.V.R.Soni, II (2004) CPJ 102 (MP), it has been held thus:-
The respondent / complainant has not produced any expert medical opinion that there has been any negligence on the part of the appellant Doctor in performing the said operation. The burden of proving negligence rests upon the person who asserts it. In medical negligence cases, it is for the patient to establish his case against the medical man and not for the medical man to prove that he acted with sufficient care and skill. See, the decision of Madhya Pradesh High Court in case of Smt.Sudha Gupta & Ors. V.State of M.P. & Ors. 1999 (2) MPLJ 259.
The National Commission has also taken the same view observing that mishap during operation cannot be said to be deficiency or negligence in medical services. Negligence has to be established and cannot be presumed. See, the decision of the National Commission in case of Kanhiya Kumar Singh V.Park Medicare and Research Centre, III (1999) CPJ 9 (NC) – (2000) NCJ (NC) 12. Similar view has been taken by the MRTP Commission in case of Dr.P.K.Pandey V.Sufai Nursing Home, II (199) CPJ 65 (MRTP) – 2000 NCJ (MRTP) 268. Followed by this Commission in Vaquar Mohammed Khan & Ano., V.Dr.S.K.Tandon, 2002 (II) 2004) CPJ 20 (NC).
Both the lower For a have held that there is no evidence brough on record by the complainant that there was any negligence shown by the respondent while implanting the lens in the eyes of the complainant resulting in persisting problem in the left eye.
34. IN the case between Nirmalendu Paul V.Dr.P.K. Bakshi & Anr., III (2000) CPJ 79:-
The complainant does not examine any expert on the subject to establish his allegation of negligence on the part of the doctor. Unfortunate though the incident is, the complainant should establish negligence on the part of the doctor to succeed in a case like this. We may observe that there is hardly any cogent material to substantiate the allegation contained in the petition of complainant. Under the circumstances, we cannot but hold that the complainant has failed to prove the allegations against the opposite parties.
35. EXPERT EVIDENCE: In the case between Surinder Kumar (Laddi) & Anr. V.Dr.Santosh Menon & Ors, III (2000) CPJ 517, it has been held thus:-
There is no evidence much less expert evidence produced on behalf of the complainants that the treatment given to the patient during this period was below the prescribed standard or otherwise not upto the standard skilled. Dr.Santosh Menon from time to time, called physician from outside to have second opinion in the matter of providing treatment to the patient, whose condition was deteriorating and accordingly such treatment was given. It will not be out of place to mention that doctors only treat whereas it is in the hands of the Almighty to cure. Each failure or unsuccessful operation cannot be considered as a negligent act of the doctor. Something more is required to be established by the complainants to prove negligent act of the doctor. The present is not a simple case of medical negligence that this Commission couldstraighway give a finding of apparent negligence holding opposite parties liable. Recently the Supreme Court in Indian Medical Association v. V.P.Shantha, 1996(1) CCJ 1 (Supreme Court) – III (1995) CPJ 1 (Supreme Court), has laid down the principles to be kept in view while deciding the cases of medical negligence. The complainants have failed to prove from any medical expert evidence that there was any negligent act on the part of the opposite parties. As held by National Commission in Sethuraman Subramanian Iyer V.Triveni Nursing Home and anr, 1998 CTJ 7: (1998) CPJ 110 (NC), in the absence of such evidence regarding the cause of death and absence of any expert medical evidence, the complainants have failed to prove negligence on the part of the opposite parties.
36. In the case between Rajinder Singh V.Batra Hospital and Medical Research Centre & Anr, III (2000) CPJ 558, it has been held thus:-
“In order to decide whether negligence is established in any particular case, the alleged act or omission or course of conduct, complained of, must be judged not by ideal standards nor in the abstract but against the background of the circumstances in which the treatment in question was given and the true test for establishing negligence on the part of a doctor is as to whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with reasonable care, Merely because a medical procedure fails, it cannot be stated that the medical practitioner is guilty of negligence unless it is proved that the medical practitioner did not act with sufficient care and skill and the burden of proving the same rests upon the person who asserts it. The duty of a medical practitioner arises from the fact that he does something to a human being which is likely to cause physical damage unless it is not done with proper care and skill. There is no question of warranty, undertaking or profession of a skill. The standard of care and skill to satisfy the duty in tort is that of the ordinary competent medical practitioner exercising the ordinary degree of professional skill. As per the settled law a defendant charged with negligence can clear himself if he shows that he acted in accordance with the general and approved practice. It is not required in discharge of his duty of care that he should use the highest degree of skill, since they may never be acquired. Even deviation from normal professional practice is not necessarily in all cases evidence of negligence.
37. CHARGE OF MEDICAL NEGLIGENCE AGAINST PROFESSIONAL DOCTORS. In the case between Smt.Savitri Singh V.Dr.Ranbir PD. Singh & Others, I (2004) CPJ 25 (Bihar), it has been held thus:-
Since Lord Denning till now it has been held in several judgments that a charge of professional negligence against the medical men stood on a different footing to a charge of negligence against the driver of a motor car. The burden of proof is correspondingly greater on the person who alleges negligence against a doctor. It is known fact that with the best skill in the world, things sometimes went wrong in medical treatment or surgical operation. A doctor was not to be held negligent simply because something went wrong due to an Act of OP No.1 & 2. There is also no allegation or evidence to come to the conclusion that both the doctors fell below the standard of reasonably competent practitioner in their field, so much so that their conduct might be deserving of censure. The National Commission as well as the Apex Court in catena of decisions has held that the doctor is not liable for negligence because of someone else of better skill or knowledge would have prescribed a different treatment or operated in different way. He is not guilty of negligence if he has acted in accordance with practice accepted as proper by a reasonable body of medical men. The Hon’ble Supreme Court in the case of Dr.Laxman Balkrishna V.Dr.Trimba, AIR 1969 SC 128, has held the above view which is still considered to be a land-mark judgment for deciding a case of negligence. In the case of Indian medical Association v. Santhana, the Apex Court has decided that skill of medical practitioner differes from doctor to doctor and it is incumbent upon the complainant to prove that OP was negligent in the line of treatment which resulted in the life of the patient. Therefore, a judge can find a doctor guilty only when it is proved that he has fallen short of standard of reasonable medical care. The principle of Res-Ipsa-Loauitur has not been generally followed by the Consumer Courts in India including the National Commission or even the Apex Court in deciding the case under this Act. In catena of decisions it has been held that it is for the complainant to prove the negligence or deficiency in service by adducing expert evidence or opinion and this fact is to be proved beyond all reasonable doubts. Mere allegations of negligence will be of no help to the complainant.
38. With these in the background let us consider the merit of the case. Whether the conduct of the Opposite Parties amounts to medical negligence and deficiency in service.
39. Reading the pleadings in conjunction with the affidavits and documents on record, it is established that the Complainant has taken her son to the OP Hospital in July 2011 for head ache and he was treated. Out patient record produced by the Complainant proves it. This has been suppressed by the Complainant in her pleading.
40. Further it is seen that in November 2011 Complainant has taken her son for abdominal pain where the Sonology Scan was done and report was given, that all. According to Sonology Scan report done by Dr. Md. Basheer and OP2, there was no significant abnormality. This report has not been challenged by the Complainant. If the report is wrong, Complainant would have taken it any expert for opinion in this regard. The Sonology photographs are produced with and Complainant would have taken these photographs to another Radiologist and would have confirmed that the report given by OP2 is wrong in analyzing the pictures, that has not been done.
41. The grievance of the Complainant is that her son complained abdominal pain, hence her son was taken to Dhanavantri Polyclinic on 28.11.2011 where another Solonogy was done. It was reported that he was suffering from Appendicitis and hence her son was operated for Appendicitis. For the said matter how can OP be responsible? Ops neither found any Appendicitis nor operated the Complainant’s son for the same on 14.11.2011. Hence, it cannot be said that there is deficiency in service or negligence. Merely not diagnosing properly, it does not mean that it is negligence. Ops in their knowledge, they have found that there was no abnormality in the abdomen. It does not mean that Ops were negligent. Here, the Complainant has gone to another Doctor and got cured of her son’s stomach pain. Complainant has not paid any money to the Ops. Complainant never stated that she paid any money to the Ops for doing any service.
42. Hence, under these circumstances, we hold the point accordingly and pass the following order:
ORDER
1. Complaint is dismissed.
2. Send copy of the Order to the parties free of cost.
3. Send extra sets to the parties concerned as under Regulation 20(3) of Consumer Protection Regulations 2005.
(Dictated to the Stenographer, got it transcribed and corrected and pronounced in the open Forum on this the 3rd day of April 2012)
T. NAGARAJA K.G.SHANTALA H.V.RAMACHANDRA RAO
Member Member President
SSS
